Justice Department requests new hearing on wetlands case

January 14, 1998|By Heather Dewar | Heather Dewar,SUN STAFF

Worried that a controversial Maryland case might weaken wetlands protection elsewhere in the country, the U.S. Justice Department has stepped in to ask a federal appeals court in Richmond for a new hearing.

Late yesterday, the Solicitor General's Office asked a three-judge panel of the U.S. 4th Circuit Court of Appeals to reinstate the criminal conviction of developer James J. Wilson, who was sentenced to a prison term for illegally filling 70 acres of wetlands in Charles County.

When the panel threw out Wilson's conviction last month, its decision rolled back long-standing federal protection for some wetlands in Maryland and four other states. The ruling leaves it up to states to decide whether and how much to protect bogs, swamps and small wetlands that are cut off from bigger bodies of water.

Because the case has national importance, local prosecutors asked the Justice Department to decide whether or not to appeal. Last night, hours before the deadline for filing an appeal, federal lawyers asked for the rehearing in front of the three

judges who ruled against them.

By appealing, the Justice Department is risking that the panel might go even further in rewriting the federal rules that protect marshy lands in Maryland, Virginia, West Virginia, North Carolina and South Carolina.

The Dec. 23 decision by the panel might make it easier for developers to build and farmers to plant on the out-of-the-way marshlands. States such as Maryland that have their own wetland laws could keep tough regulations on the books.

But Maryland could find its efforts to preserve boggy areas stymied by a more lax approach to controlling development or pollution in other states.

In its 2-1 ruling, the three judges of the 4th Circuit Court of Appeals in Richmond overturned the criminal conviction developer Wilson and two of his companies. Wilson was convicted in 1996 of knowingly violating the Clean Water Act when his company filled about 70 acres of marshy land to build parts of St. Charles, a huge planned community midway between the Potomac and Patuxent rivers in northern Charles County.

Wilson was sentenced to 21 months in prison and a $1 million fine. His company was fined $3 million and ordered to restore twice the amount of damaged wetlands.

But Wilson insisted that the drained land wasn't covered by the Clean Water Act because it didn't fit the law's definition of a protected wetland. The appeals judges agreed, ruling that the U.S. Army Corps of Engineers has no authority to regulate wetlands that don't flow directly into navigable waterways. The wetlands that Wilson's company filled are nine miles from the Potomac River.